The long forgotten Congressional battle that could ultimately decide whether felons get their voting rights restored;detailed in many investigative pieces for major publications by Evan Gahr, the only journalist who has reported on the jailhouse bloc movement virtually since its inception.

THE VOTING RIGHTS ACT -- already notorious for creating super -gerrymandered congressional districts and an unusual alliance between the Republican party and the Congressional Black Caucus -- may soon produce its strangest progeny: prison voting booths.

The tradition of denying the vote to imprisoned felons, which predates the American founding and is enshrined in the laws of 47 states, is "now under attack as illegal, and, worse, racist. Inmates in New York state are demanding the franchise. Their argument rests not on some far-fetched legal theory, concocted by jailhouse lawyers, but rather on a reading of the Voting Rights Act plausible to some legal experts.

In a federal lawsuit, a group of maximum-security inmates argue that because New York prison populations are overwhelmingly minority, the state's prohibition on voting by imprisoned felons dilutes minority voting strength -- in violation of the Voting Rights Act.

The success of the inmates so far illustrates the degree to which the legal system no longer requires proof of intentional discrimination in civil-rights cases. Merely showing a discrepancy in the racial numbers, "disparate impact," as the prisoners do, may be enough to win -- no matter the reason for that discrepancy. Under the Voting Rights Act, the prisoners" claim of "disparate impact" cannot be laughed off. "It's hard to call the case frivolous," says Marc Stern, a lawyer with the American Jewish Congress and a voting rights expert.

There's no doubt that New York's law denying imprisoned felons the right to vote falls disproportionately on minorities. And while disparate impact alone may not have sufficed to establish a violation under the original Voting Rights Act of 1965, Congress changed this in 1982.

In response to a 1980 Supreme Court ruling that the Voting Rights Act prohibits only intentionally discriminatory practices, Congress amended the original act so that a mere technicality like discriminatory intent would not be needed to establish a voting rights violation.

Senator Bob Dole, who along with leading Republicans such as Henry Hyde supported the amended version, explained that he shared the view of the civil rights community that "in some voting cases, it is hard to prove intent."

Now it's unnecessary. Any voting requirement that happens to diminish minority voting strength can be illegal. The result is that the Voting Rights Act, like other pieces of 1960s legislation designed to combat genuine discrimination, now functions primarily as a legal cattle prod for group rights. Perfectly legitimate practices that happen to have a disproportionate, unintended impact on minorities are impugned.

Consider the 47 state laws barring imprisoned felons from voting. Normally, prisoners who challenged laws denying them the right to vote wouldn't get any farther than they do with any of their other zany lawsuits. The 14th Amendment allows states to deny criminals the vote. And courts have generally upheld challenges to these laws -- except when they are found to discriminate intentionally, or contain suspect criteria. (A law against voting by wife- beaters was struck down in part because of its suspect gender classification.)

But the game has now changed. Just ask the distinguished residents of the Green Haven Correctional Facility, in Stormville, New York.

During the 1993 New York City mayoral election, a group of black and Hispanic inmates at this maximum-security facility were eager to vote for David Dinkins. All that stood in their way, of course, were their convictions for second-degree murder, armed robbery, and drug dealing. But these civic- minded cons didn't want to sit out the election. In September 1993, they challenged the law in federal court.

Their lawsuit, whose chief engineer was jailhouse lawyer Theodore Baker, a convicted murderer now gone to his reward, charges that because blacks are more likely than whites to be in ail for the same crimes, and because the state prison population is 82 percent minority, both the Voting Rights Act and the constitutional guarantees of equal protection are violated by New York's law.

The lawsuit was dismissed by he United States District Court for the Southern District in February 1994. But the inmates had better luck with an appeal argued last December before the Ufiited States Court of Appeals for the 2nd Circuit by "Andrew Shapiro, then a Yale law student, now a contributing editor to the Nation.

Although the appeals court didn't think much of the inmates" constitutional claims, noting that establishing a violation of the 14th and !5th Amendments would require proof of intentional discrimination, it ruled this May that the case should be reinstated largely because it "raises novel and important legal issues" under the Voting Rights Act -- and the prisoners should be allowed to try to establish a violation.

They have their work cut out for them. As Stern notes, "It doesn't follow that because you've shown adverse impact, the practice is illegal."

In determining whe ther a law has illegally diluted minority voting power, courts must consider the "totality of circumstances" outlined by Congress. This "totality" includes whether a requirement has worthy justification, and whether the state enacting it has a history of voting discrimination.

Under these standards, this particular case is a "hard call," says University of Washington law professor Eric Schnapper, who lost the Supreme Court case that prompted Congress to amend the Voting Rights Act. "A reasonable judge could go either way."

Regardless of the outcome, the case should give both liberals and conservatives something to mull over. Are left-liberal civil rights activists, so fond of using disparate impact to advance their cause, willing to make the case that prisoners should vote?

Willie Horton (above). Dem voter?

True, armed robbers and convicted murderers don't make ideal poster children for the Voting Rights Act. But their claim isn't much different in form from those of other civil rights litigants who use mere statistics to offer "legal" proof of discrimination and thereby demand remuneration -- or to invalidate civil service exams and such when they fail to produce as high a rate of minority success as activists would prefer.

And before congressional Republicans get all huffy over states" being forced to allow criminals to vote, it's worth remembering that they overwhelmingly supported the amended Voting Rights Act, which the Cardozos of the Green Haven Correctional Facility now hope to make a springboard to full civic participation.

If, on purely philosophic grounds, this doesn't give GOP politicians pause, perhaps the specter of newly enfranchised felons will. Republicans should think twice before bowing to any more demands from the "civil rights" lobby. They may unwittingly have granted the Democrats a huge untapped constituency.

Copyright 2000 The American Spectator
PUBLICATION:The American Spectator
DATE: June, 2000
SECTION: Among The Intellectualoids
LENGTH: 1857 words
HEADLINE: Criminal Voters Democrats pursue a major cell, er, voting bloc.
BYLINE: by Evan Gahr; Evan Gahr is a contributing writer for the American Enterprise magazine and a former New York Post press critic.
LOAD-DATE: June 6, 2000 Copyright 2000 News World Communications, Inc.

BODY:

In 1963, Martin Luther King, imprisoned for civil disobedience, wrote his famous "Letter from Birmingham Jail."

In 1993, Theodore Baker, imprisoned for second-degree murder, wrote a letter from an upstate New York jail. Baker and eight other inmates at the Greenhaven Correctional Facility in Stormville, New York, were determined to help re-elect then-Mayor David Dinkins. But this civic-minded bunch of murderers, robbers, and drug dealers had stumbled upon an unexpected obstacle. New York disenfranchises convicted felons. Baker's letter in the July 27 Daily News said the law "perpetuates racial oppression and exploitation."

Baker is now deceased. But his larger cause, which as recently as 1996 many liberals wouldn't even touch, has lately gained some formidable allies. Over the last year, Democrats have joined a nationwide campaign by "prisoner rights" advocates against the laws in nearly every state which render felons ineligible to vote. A total of four million Americans--including 13 percent of black men--can't vote this November because of their criminal records.

The movement to correct this "injustice" just won tacit encouragement from Vice President Gore. It has garnered support in Congress, where a bill proposed by Rep. John Conyers (D-Mich.) would force all states to allow criminals on probation or parole to vote in federal elections. Currently, 47 states and the District of Columbia don't let incarcerated felons vote. In 32 states, parolees are denied the vote. Fourteen states disenfranchise felons for life.

Like the recent push against the death penalty, the nationwide move to restore voting rights for felons wants criminals to be seen as victims--even civil rights heroes. In its view, minorities are disproportionately incarcerated or otherwise engaged by the racially biased criminal justice system. The consequent disenfranchisement reduces overall minority voting power. Thus, denying the vote to felons is a racist ploy akin to the notorious literacy tests.

As NAACP Washington Director Hilary Shelton testified before Congress last October, "Felony voting restrictions are the last vestige of the voting prohibitions in the United States... I have faith that the morally correct path, blazed by the inspiration of a more democratic union shall ultimately prevail, and this imperfection in our society too shall be corrected."

Though it remains an uphill battle, the stakes are considerable, particularly since former denizens of the "Big House" are by most accounts an untapped Democratic constituency.

"Michael," for instance, who tells TAS he spent five years in an upstate New York prison for a felony conviction that is too "personal" to name, wanted to vote for then-Rep. Ed Koch for mayor in 1977. "Everybody wanted to vote, but (prison authorities) said 'you don't have no rights.'"

Today, he does. Like all ex-felons in New York State who have completed their sentences, Michael is eligible to vote. A registered Democrat, he even carries his voter registration card in his wallet and says he prefers Hillary for Senate because she is sympathetic to the poor. A few blocks away, Smitty, a convicted drug dealer still on parole and thus ineligible to vote, expressed similar sentiments. He laments that "Giuliani made the city into a police state."

For most of the last decade, there were scattered lawsuits and complaints by prisoner rights advocates about criminal disenfranchisement. But the cause attracted little attention. Legislation introduced by Rep. Conyers in 1994 went nowhere.

But in January 1997, the movement hit upon a winning strategy--with the help of two media-savvy groups that have long understood the best way to discredit the nation's war on crime. The Sentencing Project, which the press usually calls an objective "research group," was actually spawned by the National Legal Aid and Defender Association. Funded by liberal foundations and tax dollars ($204,000 from the Justice Department in 1999), the Washington, D.C.-based organization spent much of the last decade impugning stiff sentences as unfair to minorities. It attracted wide attention with a 1995 study that found one in three black men in their twenties were entangled with the criminal justice system. Its 1997 report noted that one in seven black men could not vote because of their criminal records. "The cumulative impact clearly dilutes the political power of the African-American community." The report actually focused on disparate impact generally, but only the voting issue created a buzz.

Just days before the November 1998 election, the Sentencing Project and Human Rights Watch issued a major report on disenfranchisement. "If present trends continue," it predicted, "as many as 30-40 percent of the next generation of black men will lose their right to vote." Countless stories began appearing nationwide on the "shocking" numbers of disenfranchised minorities.

In recent months at least ten states have weighed measures to liberalize criminal disenfranchisement laws. The current battle has ostensibly focused on ex-cons who are said to have "paid their debt to society." But the real objective is to undermine all criminal disenfranchisement laws. The Sentencing Project and Human Rights Watch even suggest that denying the vote to persons in jail could violate international law. Sentencing Project Assistant Director Marc Mauer and Human Rights Watch Associate Counsel Jamie Fellner have written that "it is hard to imagine that permitting inmates to vote by absentee ballot once a year would pose an undue burden on prison operations."

Ex-cons are simply the obvious starting place. As Rep. Maxine Waters (D- Calif.) put it, "We start where it is possible to succeed." But the trump card remains race.

Consider how the debate played in Florida, where 30 percent of all black men are ineligible to vote because of current or prior jail terms. In 1998, a group of black lawmakers introduced legislation that would automatically restore voting privileges to some ex-convicts. "The penal system is for punishment," said state Sen. Mandy Dawson-White. "How long should this punishment last?"

So long as Gov. Jeb Bush wouldn't answer the question, the bill faltered. But when prominent black legislators called the matter a litmus test of his support for minorities, Bush signed on. On March 17, the proposed constitutional amendment sailed through a Florida senate committee. (Under the other Gov. Bush, Texas liberalized its law in 1997 and no longer requires ex-felons to wait two years before voting.) Virginia this year streamlined the process that allows non-violent felons to regain voting rights on completion of their sentences. Maryland's General Assembly is considering a measure to restore voting rights to repeat offenders.

Meanwhile, last October a House Judiciary subcommittee finally held hearings on Rep. Conyers's legislation. Conservative activists and writers have sneered, but they should hold the laughs. Recent history provides a cautionary tale about Republican acquiescence in the perversion of civil rights legislation.

Criminal disenfranchisement, which the 14th Amendment expressly allows, predates the country's founding. It's thus safe to assume it wasn't racially motivated. Amid debate over the landmark 1965 Voting Rights Act, lawmakers on both sides of the aisle--including then-freshman Senator Ted Kennedy-- forswore interfering with the disenfranchisement of felons (either in jail or out). As both Judiciary committees declared, such restrictions should in no way be confused with a number of devices the Voting Rights Act would ban. This, of course, was before "civil rights" became a cover for group entitlement.

In a 1980 case unrelated to disenfranchisement, the Supreme Court ruled that discriminatory intent is required to establish a violation of the Voting Rights Act. Congressional Democrats pushed for legislation to overrule the decision. Republicans balked--and were cast as racially insensitive or worse. Eventually, the GOP caved--at the behest of Henry Hyde and Bob Dole. In 1982 Congress amended the Voting Rights Act to expressly say that even laws without "discriminatory purpose" could violate the act if they diluted minority voting power. Senator Dole explained that he accepted the civil rights lobby's claim that "intent is often hard to prove."

Now it doesn't have to be proved; the new provision has proved a godsend to the prisoner rights movement. Since 1993, at least three federal lawsuits employed the disparate-impact test on behalf of criminal offenders. Marc Stern, a voting rights expert at the American Jewish Congress, says "these are not frivolous lawsuits."

Indeed, when Yale Law students made the vote dilution argument on behalf of Theodore Baker and his David Dinkins fan club at Greenhaven Correctional Facility, courts took heed. In 1993, a federal appeals court panel upheld the case. It finally failed in 1996 when the appeals court heard the case en banc. The judges split 5-5. This meant an earlier lower court ruling against the prisoners stood.

In December 1999, the Philadelphia NAACP made a similar claim in an amicus brief for a federal lawsuit on behalf of current and ex-felons in Pennsylvania.

In Washington state, where felons are disbarred for life unless they get clemency, Muhammad Shabazz Farrakhan's federal lawsuit continues apace. The case, which charges minority vote dilution, was filed in 1996 when Farrakhan (no relation to Louis) was incarcerated for theft by deception. Released the following year, he won a court battle in 1998 to run on the Republican ballot for state representative, even though he still owed $24,000 to his victims. He lost the election, but remains an outspoken Republican and heads an organization called the National Young Black Republicans. (State and national GOP officials say the group has no party ties.)

Farrakhan's lawyer, Dennis Cronin, sees nothing "incongruous" about using civil rights law for prison inmates. Like Martin Luther King, "these people were stripped of their civil rights," Cronin said in a telephone interview. " They're still citizens. Their children fight in foreign wars. It's not a Gulag." The case already survived a motion for summary judgment in 1997. New motions are due June 7.

Certainly, there have been setbacks. In 1998 Utah barred inmate voting. In Massachusetts, the state legislature is expected soon to adopt a similar measure--although the final decision rests with voters. In Oregon last year, state legislators closed a loophole that allowed inmates at a federal prison in Sheridan to vote. County Clerk Charles Stern had worried that, with 2,500 prisoners amid the total town population of 4,800, they could have affected bond issues and school board elections. Others should be nervous, too. As lawyer Cronin notes, "Some of these prisons are big, like cities. They could make a whole ward."

Will the jailhouse become a Democratic mainstay, like labor union conventions, feminist gatherings, and Buddhist temples? Talk about political prisoners.

He has not exactly Martin Luther King. But in Spokane, Washington, convicted felon Muhammad Shabazz Farrakhan could emerge a genuine civil rights pioneer.

Along with an incarcerated murderer and other criminals he recruited from jail, Farrakhan (who denies any Nation of Islam ties) claims Washington's criminal disenfranchisement law discriminates against minorities because so many are imprisoned. His federal lawsuit echoes arguments made against similar laws nationwide (including a 1995 Penns ylvania law signed by prospective Bush running mate Gov Tom Ridge and challenged last week in federal court. by the National Association for the Advancement of Colored People.)

Sadly, the civil rights cause has once again been perverted to render individual behavior all but irrelevant. After all, if you think criminal disenfranchisement harms "persons of color" there are two obvious solutions: Change the law or change behavior (strive to keep folks out of jail - a relatively straightforward process in which abstaining from murder, rape or armed robbery is usually a good first-step.) The civil rights lobby, however, has opted for changing the law.

Like the District of Columbia, and 46 other states, Washington denies the vote to imp risoned felons. It also ranks among the 32 states that don't let parolees vote. In 14 states even ex-felons are disenfranchised for life.

Across the country, a total of 4 million Americans - including 13 percent of black men - cannot vote this November because of their criminal records. In a nationwide campaign against criminal disenfranchisement, civil rights groups and other liberal advocacy groups have focused on state legislatures and Congress - with mixed results.

Virginia earlier this year streamlined the process that allows non-violent offenders to regain voting rights upon completion of their sentence. Under Gov. George W. Bush's reign, Texas in 1997 eliminated its requirement that ex-felons wait two years before they can vote.

But the Pennsylvania House of Representatives last month rejected a proposal to allow felons to register to vote immediately upon their release from jail. Currently, they must wait five years.

So far, the reform movement has shrewdly focused on ex-cons - said to "have paid their debt to society." But don't let the smoke screen fool you. First, how can it be argued that someone on parole, whose voting rights in many states and even federal elections would be restored if the reform movement succeeds, has paid his entire debt to society?

Often, they still owe their victims money. Moreover, the movement's ultimate goal here is to let prisoners vote. This would "hardly pose an undue burden on prison operations," argues Marc Mauer, associate director of the left-liberal Sentencing Project. But it is not politically feasible. Interviewed by the American Spectator, both Mr. Mauer and Rep. Maxine Waters, California Democrat, were candid enough to concede ex-cons are simply the obvious starting point. And even this has been a tough sell.

If elected officials continue impeding reform, however, the courts offer a tempting alternative. After all, using courts to circumvent popular sentiment is hardly an unknown strategy for left-wing proponents of "racial justice." (Remember court-ordered busing? ) In December 1999, the NAACP filed an amicus brief in support of a state court challenge to Pennsylvania's criminal disenfranchisement law. Last week, the NAACP filed a separate challenge in U.S. district court under federal civil rights law and the equal protection clause of the U.S. Constitution.

But pay close attention to the courts: With intent no longer required to legally establish discrimination almost anything is possible (except, perhaps, common sense). First, businesses and municipalities were told otherwise legitimate employment requirements run afoul of civil rights law if they have a disparate impact on minorities or women. (In one notorious ruling, a federal judge in New York some years back declared that upper-body strength was irrelevant to a firefighter's job.) Now, criminal disenfranchisement, which the 14th Amendment expressly allows and predates the country's Founding, is suddenly racially odious.

Previously, challenges to criminal disenfranchisement could only succeed if plaintiffs proved the laws were aimed at minorities. The Supreme Court did strike down one such Alabama law.

Scholars say some Southern laws enacted after the Civil War were aimed at blacks. But there is no evidence that the vast majority of laws - many passed before blacks could vote, of course - are akin to the notoriously racist poll taxes and literacy test, which the 1965 Voting Rights Act outlawed.

But now the question of intent is somewhat irrelevant. In 1982, Congress, with strong GOP support, amended the Voting Rights Act to expressly say even laws without "discriminatory purpose" could violate the act if they diluted overall minority voting strength. GOP bigwigs Bob Dole and Henry Hyde accepted the left's argument that intent is often hard to prove.

The law was changed in response to a Supreme Court decision unrelated to criminal disenfranchisement. Little did Mr. Dole, Mr. Hyde and even the most "progressive" Democrats realize the new language would soon proved a legal godsend for civic-minded convicts.

Sure enough, in 1993, a bunch of maximum security inmates in New York state were determined to help re-elect then New York City Mayor David Dinkins. They were aghast to discover that their incarceration for murder, robbery, drug dealing and other such faux pas rendered them ineligible to vote under New York state law. With the help of Yale Law students, they charged the law violated the Voting Rights Act because it decreased overall minority voting power in the Empire State. (Never mind that the plaintiffs marshaled no hard evidence the law was specifically aimed at blacks.)

In 1995, a federal appeals court panel upheld their claim. It ultimately failed in 1996 when the entire appeals court reheard the case. In a highly technical ruling, the judges split 5-5; this meant an earlier lower court ruling against the prisoners stood. If only one judge had thought differently, he could have paved the way for a jailhouse bloc. No wonder that in Spokane, Wash., Farrakhan's case, which already survived the state's 1997 motion for summary judgment, is modeled after the New York lawsuit, according to his lawyer, D.C. Cronin. New motions for summary judgment were due last month and Mr. Cronin says the federal district judge assigned to the case may very well rule this month that it should go to trial.

The lead plaintiff, Farrakhan, a Republican who detests the NAACP but loves affirmative action (go figure), filed his case while still in jail for felony theft. He was released in 1997. He still owes his victims about $24,000. Still, he's a regular choir boy compared to his co-plaintiffs (all minorities) who were guilty of murder, armed robbery and other such offenses. No matter. Civil rights leaders have a dream. For voting rights purposes, criminal offenders should be judged not by the content of their character but the color of their skin.

Gore's Biggest Missing Voting Bloc: Florida bloc
By EVAN GAHR

Prison or Predominantly Democratic voting precinct?

http://www.jewishworldreview.com -- TALK ABOUT swing voters.

Never mind the nearly 100,000 Naderites in Florida who didn't much care if they threw the election to George Bush. Forget the elderly Jews reportedly aghast to discover that they mistakenly voted for Pat Buchanan instead of Al Gore.

Has anyone noticed that the Vice President could easily have won Florida with the help of a burgeoning, yet still untapped, Democratic constituency? Five hundred twenty-five thousand strong in the sunshine state, all that kept them from the voting booth were convictions for rape, murder, armed robbery, and other faux pas. Florida, like the District of Columbia and 46 other states, disenfranchises convicted felons --- practice which pre-dates the country's founding.

Over the last few years, the civil rights movement and left-wing advocacy groups have derided criminal disenfranchisement as racially odious, a modern-day poll tax. Courts take the argument quite seriously. But state legislators, including Florida Republicans, have given little ground --- at least until now. Marc Stern, a voting rights expert at the American Jewish Congress, speculates that the close election in Florida is likely to embolden the reform movement. Republicans who continue to oppose reform would appear particularly partisan-and worse. Liberals can now cite Florida to illustrate the horrific consequences of denying the vote to criminal offenders. Previously, their case was somewhat abstract.

This past election day, an estimated 4 million Americans, including 1.4 million black men, were ineligible to vote because of felony convictions. Everywhere from Florida to Washington state, felon disenfranchisement faces challenges in Congress, state legislatures and federal courts. Last month, a federal judge in Spokane heard arguments against Washington state's disenfranchisement law. On September 22, civil rights groups asked a federal court to overturn the disenfranchisement law in Florida, where some 31 percent of all black men are ineligible to vote because of criminal records. The lawsuit -- like others nationwide -- claims that felon disenfranchisement dilutes overall minority voting in violation of the landmark Voting Rights Act.

The Brennan Center claims the lawsuit it filed in Florida lawsuit is "about democracy, not crime." Democracy, indeed. At the height of the Reagan era, the GOP laid the groundwork for just the kind of lawsuits that may soon swell Democratic voting rolls. In 1982, Congress, with overwhelming GOP support, made it much easier for plaintiffs to win lawsuits filed under the Voting Rights Act. The landmark legislation was amended to expressly declare that even laws without "discriminatory purpose" could violate the act if they diluted overall minority voting strength. A decade later, civic-minded cons and civil rights lawyers made good use of the amended legislation. Without bothering to prove or allege discriminatory intent, everywhere from New York to Washington state, lawyers sued under the Voting Rights Act to invalidate laws that disenfranchised imprisone! d felons and ex-offenders. The Florida case is a bit more modest. It was filed only on behalf of the 525,000 ex-felons who can't vote. The lawsuit claims the law is discriminatory in impact and intent.

Nearly 650,000 Floridians can't vote because of criminal records, but only those out of jail would benefit from the lawsuit. Florida allows offenders who have completed their sentence to seek restoration of voting privileges if they have no more than $1,000 in outstanding fines. But liberals liken that provision to a "poll tax" because ex-jail birds have obvious financial travails. In view of such arguments, no wonder the Florida state legislature has adamantly refused to liberalize the law.

Expect more lawsuits whenever legislatures rebuff the reform movement. Turning to the courts to circumvent the populace, and arguably the Constitution, is a strategy not unknown among civil rights activists and other liberals. Just ask Al Gore. His henchman seem to consider courts their last best hope to engineer a victory in the Sunshine state-and lay the groundwork for capturing the White House.

No matter the final outcome, however, the close Florida vote should provide the civil rights movement, some powerful ammunition. "It allows us to make the case yet again in present terms," NAACP Washington director Hilary Shelton tells The American Spectator. "The problem hasn't changed."

Look out for the jailhouse bloc.

Evan Gahr EvanGahr@aol.com, a former press critic for the late New York Post editorial page editor Eric Breindel, recently broke the story of a race discrimination lawsuit against the Washington Post. He has written for almost every major conservative publication.